Page:Federal Reporter, 1st Series, Volume 3.djvu/379

 872 FEDERAL REPORTKR. �npon ail the maps which have been put up, from that point the vein extends away down to the Murphy shaft. A large part of the testimony has been directed to that point, and th« witnesses have ail conourred in saying that the vein extends right along from one point to the other. We. used to have Bome controversy as to whether it could be pursued in that manner, if it declined by only a small degree, only a little from the plane of the horizon. The witnesses stated that it •was twelveor fifteen degreea below the plane of the horizon, and it used to be contended here in this court, and in other courts of the state, that they could not hold the vein if it de- clined in only a small degree from the plane of the horizon; they said that the law should be applied to veins which are more vertical in tbeir course, but we have heard nothing of that in this case. That point was decided against that view whenever it was made, and we have heard nothing of it in this case; it is not a question in issue, for it has not been raised, either by the instructions submitted to me, or requests to charge, or arguments of counsel. �And then there is some question here as to the extent of the top or apex of the location, assuming that what they claim to be the top and apex is such ; there is some question here as to the extent of it along the course of the location from north to south. . You will remember the evidence about that drift that runs away oflf across the map down to the lef t, down to the northwest — I have sometimes to stop to get these directions myself, although I ought to be very familiar with them — down to the northwest, and which may tend to prove that out in that direction the top or apex of the Iode, if there is any, may be down lower below this claim and upon the Iron Hat, or somewhere down there. If that were a ques- tion in issue here we should have some difficulty about it, but it is not. As to this particular ground that is in con- troversy between the plaintiffs and defendants, it is agreed that if there is any top and apex whetever it is there along where the witnesses have explored the ground, and which they mentioned in their testimony, from along in those first workings to the north of the main incline, and not very fai ����